Monday, 9 April 2012

O.39 Temporary Injunctions / O.26 Commissions etc

Section 75 : Power of court to issue commissions
Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.



Section 94: Supplemental proceedings
In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.


THE ORDER XXVI COMMISSIONS
Rule
TITLE
1.
Cases in which Court may issue commission to examine witness
2.
Order for commission
3.
Where witness resides within Court's jurisdiction
4.
Persons for whose examination commission may issue
4A.
Commission for examination of any person resident within the local limits of the jurisdiction of the Court
5.
Commission or request to examine witness not within India
6.
Court to examine witness pursuant to commission
7.
Return of commission with depositions of witnesses
8.
When depositions may be read in evidence
9.
Commissions to make local investigations
10.
Procedure of Commissioner
10A.
Commission for scientific investigation
10B.
Commission for performance of a ministerial act
10C.
Commission for the sale of movable property
11.
Commission to examine or adjust accounts
12.
Court to give Commissioner necessary instructions
13.
Commission to make partition of immovable property
14.
Procedure of Commissioner
15.
Expenses of commission to be paid into Court
16.
Powers of Commissioners
16A.
Questions objected to before the Commissioner
17.
Attendance and examination of witnesses before Commissioner
18.
Parties to appear before Commissioner
18A.
Application of order to execution proceedings
18B.
Court to fix a time for return of commission
19.
Cases in which High Court may issue commission to examine witness
20.
Application for issue of commission
21.
To whom commission may be issued
22.
Issue, execution and return of commissions, and transmission of evidence to foreign Court


THE ORDER XXXVIII-ARREST AND ATTACHMENT BEFORE JUDGMENT
Rule
TITLE
1.
Where defendant may be called upon to furnish security for appearance
2.
Security
3.
Procedure on application by surety to be discharged
4.
Procedure where defendant fails to furnish security or find fresh security
5.
Where defendant may be called upon to furnish security for production of property
6.
Attachment where cause not shown or security not furnished
7.
Mode of making attachment
8.
Adjudication of claim to property attached before judgment
9.
Removal of attachment when security furnished or suit dismissed
10.
Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale
11.
Property attached before judgment not to be re-attached in execution of decree
11A.
Provisions applicable to attachment
12.
Agricultural produce not attachable before judgment
13.
Small Cause Court not to attach immovable property



THE ORDER XXXIX TEMPORARY INJNCTIONS AND INTERLOCUTORY ORDERS
Rule
TITLE
1.
Cases in which temporary injunction may be granted
2.
Injunction to restrain repetition or continuance of breach
2A.
Consequence of disobedience or breach of injunction
3.
Before granting injunction, Court to direct notice to opposite party
3A.
Court to dispose of application for injunction within thirty days
4.
Order for injunction may be discharged, varied or set aside
5.
Injunction to corporation binding on its officers
6.
Power to order interim sale
7.
Detention, preservation, inspection, etc., of subject-matter of suit
8.
Application for such orders to be after notice
9.
When party may be put in immediate possession of land the subject-matter of suit
10.
Deposit of money, etc., in Court


THE ORDER XL-APPOINTMENT OF RECEIVERS
Rule
TITLE
1.
Appointment of receivers
2.
Remuneration
3.
Duties
4.
Enforcement of receiver's duties
5.
When Collector may be appointed receiver


ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Rule 1: Cases in which temporary injunction may be granted
Where in any suit it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 3 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.



Rule 2: Injunction to restrain repetition or continuance of breach
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the court thinks fit.


Rule 2A: Consequence of disobedience or breach of injunction
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.


Rule 3: Before granting injunction, Court to direct notice to opposite party
The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.


Rule 4: Order for injunction may be discharged, varied or set aside
Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]



ORDER XL-APPOINTMENT OF RECEIVERS
Rule 1: Appointment of receivers
(1) Where it appears to the Court to be just and convenient, the Court may by order
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver, and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.




INTERLOCUTORY ORDERS – AIR 1999 SC 3105; AIR 1980 SC 962

The power to grant interim relief is discretionary and inherent in every court of competent jurisdiction. AIR 1993 SC 276; AIR 1999 SC 2171.

Injunction – Equitable remedy – (2011) 7 SCC 69

The court has powers to grant ad-interim reliefs where a prima facie case is made out to avoid irreversible situations; court not bound to grant time to the caveator for filing counter before passing interim order. (2007) 5 Andh LD 248, 250.

The courts would not undertake mini trial at the stage of granting the relief of Temporary injunction.
A 2007 (NOC) 2127 (Mad);
(2001) 5 SCC 568;
(2005) 5 SCC 760.

Order granting interim injunction merely on ground of prima facie case without considering balance of convenience not sustainable – AIR 2003 All 34, 41, 42.

O.39 R.11  - Defence of defendants should be struck down

TEMPORARY INJUNCTIONS –
(1995) 5 SCC 545;
(2010) 1 SCC 689

ATTACHMENT BEFORE JUDGMENT – (2008) 2 SCC 302

O.6 R.16 – Striking of defences – grounds – contempt of – undertaking/consent terms – breach of it – 2011 (3) AIR Bom R 392 – Paras 37, 38 – WP: 5394/2010 – 11.02.2011.



Order 39 Rule 1
A Venkatasubbiah Naidu v S Chellappan & Ors AIR 2000 SC 3032
Dalpat Kumar & anr v Prahlad Singh & ors AIR 1993 SC 276
Dorab Cawasji Warden v Coomi Sorab Warden & ors AIR 1990 SC 867
Gangubai Bablya Chaudhary & Ors v Sitaram Bhalchandra Sukhtankar & Ors AIR 1983 SC 742
Gujarat Bottling Co Ltd & ors v Coca Cola Co & ors AIR 1995 SC 2372
Gujarat Bottling Co Ltd and Ors V Coca Cola Co and Ors AIR 1995 SC 2372
HPCL Vs Sri Sriman Narayan and Anr AIR 2002 SC 2598
J M Biswas Vs N K Bhattacharjee and Ors AIR 2002 SC 1649
Kuldip Singh v Subhash Chander Jain & Ors AIR 2000 SC 1410
Mahadeo Savlaram Shelke & Ors v Pune Municipal Corp & Anr 1995 3 SCC 33
Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal 1962 Supp 1 SCR
450
Morgan Stanley Mutual Fund v Kartick Das 1994 SCW 2801
Rajnibai alias Mannubai v Kamla Devi & Ors AIR 1996 SC 1946


Order 39 Rule 2A
Samee Khan Vs Bindu Khan AIR 1998 SC 2765
Tayabbhai M Bagasarwalla and anr V Hind Rubber Ind Pvt Ltd AIR 1997 SC 1240


Order 39 Rule 3A
A Venkatasubbiah Naidu Vs S Challappan and Ors AIR 2000 SC 3032


O.39, R.11, 2A – CPC – 2012 (2) All MR 860 – Para 23


(1992) 1 SCC 719;
(1994) 3 Comp LJ 27 (SC);
AIR 1999 SC 393;           
(1975) All ER 504, 510, 511 (HL);


APPOINTMENT OF A RECEIVER
(Order XL, rule 1)

(Title)

To

Whereas has been attached in execution of a decree passed in the above suit on the day of 19 , in favour of ; You are hereby (subject to your giving security to the satisfaction of the Court) appointed receiver of the said property under Order XL of the Code of Civil Procedure, 1908, with full powers under the provisions of that Order.

You are required to render a due and proper account of your receipts and disbursements in respect of the said property on. You will be entitled to remuneration at the rate of percent, upon your receipts under the authority of this appointment.

Given under my hand and the seal of the Court, this day
of 19 .

Judge.



TEMPORARY INJUNCTIONS
(Order XXXIX, rule 1)

(Title)

Upon motion made unto this Court by , Pleader of [or Counsel for] the plaintiff A B, and upon reading the petition of the said plaintiff in this matter filed [this day] [or the plaint filed in this suit on the day of , or the written statement of the said plaintiff on the day of ] and upon hearing the evidence of and in support thereof [if after notice and defendant not appearing: add, and also the evidence of as to service of notice of this motion upon the defendant CD): This Court doth order that an injunction be awarded to restrain the defendant CD, his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned (or in the written statement, or petition, of the plaintiff and evidence at the hearing of his motion mentioned], being No. 9, Oilmongers, Street, Hindupur, in the Taluk of , and from selling the materials whereof the said house is composed, until the hearing of this suit or until the further order of this Court.

Dated this day of 19

Judge.


[Where the injunction is sought to restrain the negotiation of a note or bill the ordering part of the order may run thus]: to restrain the defendants and from parting with out of the custody of them or any of them or endorsing, assigning or negotiating the promissory note [or bill-of-exchange] in question dated on or about the , etc., mentioned in the plaintiff's plaint [or petition] and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court.


[In Copyright cases] to restrain the defendant
CD, his servants, agents or workmen, from printing, publishing or vending a book called or any part thereof, until the, etc.

[Where part only of a book is to be restrained]
to restrain the defendant CD, his servants, agents or workmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is called - and also that part which is entitled [or
which is contained in page to page both inclusive] until , etc.

[In Patent cases] to restrain the defendant CD, his agents,
[servants and workmen from making or vending any perforated bricks, or as the case may be] upon the principle of the inventions in the plaintiff's plaint [or petition, etc. or written statement, etc] mentioned, belonging to the plaintiffs, or either of them, during the remainder of the respective terms of the patents in the plaintiff's plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions, or either of them, or making any addition thereto, or subtraction therefrom, until the hearing, etc.

[In cases of Trade marks] to restrain the defendant,
CD, his servants, agents or workmen from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be described as or purporting to be blacking manufactured by the plaintiff AB, in bottles having affixed thereto such labels as in the plaintiffs plaint or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiff AB, and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiff AB, until the, etc.

[To restrain a partner from, in any way, interfering in the business]
to restrain the defendant CD, his agents and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange note or written security in the name of the partnership firm of B and D, and from contracting any debt, buying and selling any goods and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or on the credit of the said partnership-firm of B and D, or whereby the said partnership-firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.




No comments:

Post a Comment

Post a Comment